Discretion

 

There was one tricky issue on the appeal. The Treaties gave the Crown [the government] to exercise its discretion to determine whether or not it had earned enough profits to warrant paying the First Nations, but that did not mean it could exercise that discretion without any parameters. It has to exercise its discretion in a way that aligns with the Honour of the Crown and its constitutional role and its duty to bring about reconciliation. As Justice Jamal said, on behalf of the entire court,

This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’…in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy…”

 

The Supreme Court also endorsed a law text which said,  ‘a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns.”

 

Therefore, even though the government could exercise its discretion on how much to pay, it can’t pay whatever it wants to pay. It must follow the rules the court set out. It must act honourably in the interests of the First Nations and all of Canada.

 

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